Indian Gaming Regulatory Act (IGRA)   Term Paper ID:27831 Buy This Paper

Essay Subject: Argues that Native American reservations are in a unique legal position as nearly sovereign political entities. Examines gambling as most effective means by which tribes generate revenues, & some positive & negative responses.... More...

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Paper Abstract: Argues that Native American reservations are in a unique legal position as nearly sovereign political entities. Examines gambling as most effective means by which tribes generate revenues, & some positive & negative responses. Paper Introduction: Introduction: In recent years, various Indian tribes have turned to casino-type gambling operations as a way to generate revenues and to overcome the deep-seated unemployment facing many tribes. Various commentators have noted the sudden growth of legalized gambling on Indian reservations. This shift also can be considered a sign of the sweeping shift in public morality that is under way in virtually every municipality, Indian and nonIndian, across the country as gambling has become an acceptable form of massmarket entertainment. In 1992 Americans spent more on legal games of chance than on films, books, amusement attractions, and recorded music combined; in that same year Americans spent three times as much money at Indian gambling casinos as on movie tickets (Magnuson, 1994, 169). Some of the Text of the Paper: The entire text of the paper is shown below. However, the text is somewhat scrambled. We want to give you as much information as we possibly can about our papers and essays, but we cannot give them away for free. In the text below you will find that while disordered, many of the phrases are essentially intact. From this text you will be able to get a solid sense of the writing style, the concepts addressed, and the sources used in the research paper. Weisenberg states: "All of ourmoney is going out of town. Gambling is not merely a Native American issue, of course, and it hasbeen adopted by a number of states and municipalities seeking increasedrevenues in recent years. Of course,this is a form of regressive taxation, since not everyone shares the burdenequally and since the poor, who may also tend to be drawn to taking achance on such games, spend a larger percentage of their income on thelottery than would someone making more money in the first place. AssemblymanHarvey Weisenberg of Long Beach noted that Atlantic City was receiving $24 million per year in tax revenue while Connecticut was getting another $4 million from an Indian reservation casino. A similar battle erupted inCalifornia over electronic gaming machines. Another response is moral indignation and anger, an emotionalresponse that may be rooted in what anthropologists call "nostalgicimperialism," an unconscious sentimentalizing and romanticizing of thatwhich a dominant culture has destroyed, or a fascination with indigenouspeople and culture, exclusively from an historical and artistic point ofview. Traditionally, states have had virtually noauthority within Indian lands. One viewsees it as a kind of humorous revenge against the white establishment, withthe Indians turning the tables--in this case, the gaming tables--on theiroppressors. The state sued, but in1982 a federal appeals court ruled that the Seminoles were a sovereignnation and that state civil regulations did not apply to them. Funds for educationprograms dipped only slightly during this era, but funds for other programsdropped greatly. A third response is the call for "an even playing field," with theaccusation that Native Americans have been given special privileges, a viewthat reflects a superficial reading of American history as well as anignorance of treaty rights and the historical relationship of tribes to theU.S. The trend was started by some of the easterntribes that have shown that the rewards can be spectacular. The parties have disagreedon which games are permitted by the state and thus which are negotiable.The state maintains that "slot machines" are not negotiable under thecompact because Florida law does not permit such machines to be operatedwithin the state (Bardakjy, 1994, 1 66-1 67). InConnecticut, the Mashantucket Pequots, with a casino complex that is nowthe largest in the country, make $2 , , a year, while the Seminoletribe in Florid reduced the share of its budget contributed by the federalgovernment from 6 percent in 1979 to 2 percent in 1984. Butterworth (from Florida) andthe other State of California v. Indians faced reduced circumstances during the Reagan-Bush era, whichwas also the era in which Indian gaming took hold. It is hopedthat the tribal-state compact process established in the IGRA may be ameans to reach answers. At present levels of profit, even a few years may provide a tribe with a colossal nest-egg for the future. I don't think anybody in this day and age could be againstthat" (Douglas, 1992, 57). The trend toward Indian gaming comes at a time when the states aremore and more entering the area of gambling themselves, with statelotteries of various types being implemented based on a belief that thisoffers a new revenue source. The first legal test came in Florida in 1979 after the Miami Seminolesdefied a state law prohibiting bingo prizes of more than $1 and beganoffering $1 , jackpots in a 1,2 -seat hall. States have beenforced by federal law to negotiate compacts that have allowed Indiancasinos, but some states have fought against this. Introduction: In recent years, various Indian tribes have turned to casino-typegambling operations as a way to generate revenues and to overcome the deep-seated unemployment facing many tribes. This legislation affirmsIndian sovereignty over gaming based onprovisions established by the country's first interactions with tribalentities. This iswhat has engendered much of the enmity against the Indian gaming operationstoday (Santoni, 1993, 436). The legislation is stillrelatively new, and important questions remain unanswered. Other programs were similarly slashed or eliminated, causingtribes to look for alternative sources of funding. When Congress passed the Indian GamingRegulation Act, it was providing states with the means to regulate tribalgaming to a degree (Kading, 1992, 317-318). Housing andUrban Development had authorized 6, new units of Indian housing duringCarter's last year as president, and it was building only 1,5 new unitsby 1988. In most states, this gives Native Americans a monopoly on gamblingoutside the private clubs and also gives them a source of capitalindependent of banks, which have little or no interest in investing inreservations in any case. One was Seminole Tribe v. Therecent push for casino gambling in New York, for instance, came aboutpartially because state officials saw large sums of money disappearing intothe casinos of nearby Atlantic City and then into Connecticut. Various commentators have noted thesudden growth of legalized gambling on Indian reservations. Fifty-eight tribes are currently involved ingaming ventures, and these venues have become important in some states.For instance, the Foxwoods casino in Connecticut is the single largestcontributor to that state's tax coffers, and alone it will provide thestate with $113 million in 1994. Gambling in most forms hasbeen illegal in most states throughout this century, except for certainspecified types of gambling in specified settings. Minnesota currently has more casinos thanAtlantic City, all under the aegis of native American tribes. (Once upon a time in the West: cowboys and Indians, 1993, 32).The Response of Trump and Other Critics: The response to Indian gambling ventures has been varied. Gambling has had a varied history in theAmerican setting, from the era when gambling activity was essentially wide-open on the frontier to an increasing shift away from gambling or towardthe control of gambling in state after state. The trendseems firmly established, however, and lawsuits such as that of DonaldTrump would seem to be long-shots at best, given the protected statusaccorded Native American tribes and the dubiousness of the constitutionalargument raised. For instance, bettingat racetracks is legal in many states, while off-track betting such as hasdeveloped in New York State remains illegal in many other states. Other areas will createfriction between the two, of course, and the battle over revenue will becentral (Kading, 1992, 338). This shiftalso can be considered a sign of the sweeping shift in public morality thatis under way in virtually every municipality, Indian and non-Indian, acrossthe country as gambling has become an acceptable form of mass-marketentertainment. Many have resources theycould develop, and a few are doing so, such as the White Mountain Apache insouthern Arizona and the Wasco tribe in Oregon, which both run relativelysuccessful sawmills and resorts. It was Supreme Court Justice John Marshall who shaped theearliest federal policy toward Native Americans at the beginning of thenineteenth century, and he wrote that Indian tribes are "domestic dependentnations, recognized as sovereign within their territories, with power ofself-government over activities on their reservations." The legalramifications of this position have proved to be complex, and subject tomodifications by the reservations' federally appointed trustee, the Bureauof Indian Affairs. In 1988, Congress bestowed its approval with the Indian Gaming Act,which advocated gambling as "a means of promoting tribal economicdevelopment, self-sufficiency, and strong tribal governments." Congresshad some reservations, but it agreed that the Indians had both the legalright to establish gaming parlors and little prospect of raising badlyneeded money from other sources. Besides, in the empty west, what other development can there be that would set tribes up, at last, on their own feet? Cabazon, and in both cases the courts usedthe "criminal-prohibitory and civil regulatory" test, which holds that ifstate law criminally prohibits a form of gambling, then the tribes withinthat state may not engage in that form of gaming free of state control.Congress passed the federal Indian Gaming Regulatory Act in 1988 as a wayof further regulating Native American gaming. Twenty states now have Indian gambling, withgambling services ranging from bingo parlors to casinos as big andglamorous as those in Nevada. Kading (1992) also considers the different legal issues facing thestates as they try to address the unique position inherent in thegovernment of Indian affairs. The reason why gambling has been so attractive to Native Americansbegins with the fact that most of the 3 Indian reservations in Americaare places of poverty and misery: nearly half of all Indians areunemployed; around 9 percent are on welfare; three-quarters of adults haveannual incomes of less than $7, , even with welfare included, andalcoholism is rife. Tribesnationwide took note, and within five years there were 113 bingo operationsaround the country grossing $225 million annually. Critics ofthese suits state that they fail to understand the rights of NativeAmericans as guaranteed by the Constitution. Legal challenges werebrought by many states, but in 1987 the Supreme Court decided that Indianscould operate any form of gambling already permitted by the state--andcould do so with their own regulations, meaning that in the 14 states thatallowed groups to run highly restricted "Las Vegas nights" for charity, thedoor was opened for Indians to start up full-blown casinos. Weisenberg and other legislators introducedbills to amend the state constitution to allow for casino gambling based onthe perception that it would then be possible for the State of New York tokeep some of this gambling revenue in the state.Present Situation: The issue of Indian-owned casinos has become somewhat separate fromthe larger issue of gambling sanctioned by the state. IGRA gave thestates the power to regulate, and Florida has been sued for refusing tonegotiate with the Seminole Tribe on the issue. "State Authority to Regulate Gaming Within Indian Lands: The Effect of the Indian Gaming Regulatory Act." Drake Law Review (1992), 317-338.Magnuson, Jon. government. Casino gambling does produce revenue andemployment. Sincethe 194 s, casino gambling was associated almost solely with Las Vegasuntil the institution until Atlantic City, New Jersey instituted casinogambling in the late 197 s. Both the states and the Indian groups have thesame interest in keeping Indian gaming free of corruption, and the statesand the tribes can work together toward this goal. The impetus for the Indians to institutegambling is the same--to generate revenue in an era of diminishedgovernment assistance. Trump has sued the federalgovernment for supposedly giving tribes regulatory breaks. Trump filed his suit in May 1993 against Secretary of the InteriorBruce Babbitt and Anthony Hope, chairman of the federal National IndianGaming Commission, seeking to overturn the IGRA on the grounds that itviolates the Tenth Amendment, which states, "The powers not delegated tothe United States by the Constitution, nor prohibited by it to the States,are reserved to the States respectively, or to the people." In the suit,Trump refers to the pact between Connecticut and the Pequot, as well assimilar pacts in New York and New Jersey, and says reservation gaming robsstates of their sovereign rights and income from taxes, from which thereservations are exempt. One difference in Florida isthat the state has consistently reduced its constitutional strongholdagainst gambling when faced with economic crises, and this fact may givethe Indian operations a rationale for entering new areas and for the courtsto allow this (Bardakjy, 1994, 1 97). The tribes are sovereign governments that pay notaxes, and if they choose to attract business with tax breaks, incentives,and lighter regulation, they have a perfectly right to do so. The 1988 act is one such example, and it placesrestrictions on tribes that are not imposed on state gaming operations.It ensures that tribal governments are the sole owners and primarybeneficiaries of gaming, and it further states that tribes may not conductcasino-type gambling without a valid tribal-state compact regulating suchissues as what games are played and the percentage of payoffs (Magnuson,1994, 169-17 ). Some of the impetus forthe growth in gambling on Indian reservations derives from the 1988legislation known as the Indian Gaming Regulatory Act (IGRA), legislationwhich has recently come under fire from various critics who believe thatNative Americans are being given an unfair advantage in developing gamblingor who are opposed to gambling itself and see this legislation as immoralor as bad public policy. Many states are desperately inneed of revenues, and they thus seek to get a portion of the revenues fromIndian gaming operations as they would from any other business. More and more tribes, however, have beenpinning their faith on a different enterprise, one that has nothing to doeither with land or tradition, which requires no education, and whichoffers a cornucopia of cash apparently outside the control of white men:casino gambling. The use ofreservation lands for large-scale commercial gaming designed to attract non-Indian players is a relatively new trend, and two court cases from theearly 198 s set the standard for states to follow in regulating theseestablishments. The central issue today in American Indian law is the extent of thepower or right of an Indian tribe to govern itself and to regulate itsaffairs and the conduct of persons in Indian territory. Indian gambling hasbecome a multibillion-dollar industry (Rawson, 1993). However, some believe that intime Congress may move to revise the act to exert more control overreservation gambling (Hanson, 1993, 6-7). The legal battle taking place in Florida is an example. The concerns raised about Indian gaming are alsomuch the same as those raised for other types of gambling--possibletakeovers by organized crime, moral issues, economic questions. "Dances with Sharks." Washington Monthly (March 1992), 26- 3 .Server, Andrew E. Revenuegenerated nationwide by Indian gambling runs at $5.8 billion a year, andclearly every tribe now wants to gain a share of the profits to be made: Western governors, many of whom are still prudish about gambling, are entering into compacts by which every tribe can have dozens, even hundreds, of machines. "The Indian Gaming Rgulatory act: How Did We Get Here? Other forms of gambling have been adopted inrecent years in many states as a way of raising state revenues fordifferent programs, and state lotteries are becoming more the rule than theexception as a consequence. Tribes started toying with bingo in 1979, but it was theIndian Gaming Regulatory Act of 1988 which allowed Indians to operate, ontheir reservations, any sort of gambling that was not banned in theirstates. The IGRA itself has beenaffirmed by the Supreme Court, making it unlikely that a furtherconstitutional challenge will be successful. "Casino Wars" Ethics and Economics in Indian Country." The Christian Century (February 16, 1994), 169-171."Once Upon a Time in the West: Cowboys and Indians." The Economist (December 25, 1993), 31-34.Rawson, William F., "Gambling Debate Rages as States Seek Control Over Reservation Casinos," Associated Press (March 8, 1993).Santoni, Roland J. In 1992 Americans spent more on legal games of chance thanon films, books, amusement attractions, and recorded music combined; inthat same year Americans spent three times as much money at Indian gamblingcasinos as on movie tickets (Magnuson, 1994, 169). "Gambling: Playing Their Ace to Get Out of the Hole." Insight on the News (June 21, 1993), 6-15.Kading, Linda King. Where Are We Going?" Creighton Law Review (February 1993), 387-437.Segal, David. "Is There a Lucky Seven in Florida's Future?" Nova Law Review (Winter 1994), 1 65-1 97.Hanson, Gayle. In 198 , the National Health Service Corps sent 155physicians to reservations, and in 199 it would send only 7. It can be diminished in three ways: 1) by treaty or agreement; 2)by federal statute; or 3) by a judicial holding that some tribal authorityis inconsistent with the tribe's "dependent status." The Indian GamingRegulation Act diminishes tribal sovereignty to a degree, but the extent ofthis diminution is subject to current debate and litigation (Santoni, 1993,387). ReferencesBardakjy, Eugene Neimy. If thetribes wish to sell goods free of sales or excise tax to undercut theneighboring white merchants, they can do so. This is the issueof tribal sovereignty and is considered an inherent preconstitutionalright. The subsequent litigation shows that the federal government cannotrely on tribal-state cooperation to solve the difficult policy issuesemerging when Indian tribes dealing primarily with non-Indians raiseuntaxed revenues from gaming operations. Under the Federal IndianGaming Act, if any form of gambling is legal in a state, something similarmust also be permitted on the lands of a recognized Indian tribe. Reference can be made to the agreement betweenthe Pequot Indians and Connecticut as an example. At least six stateshave successfully challenged the 1988 federal Indian Gaming Regulatory Actin federal court, while others have lost their suits. Legislators often view gambling as a way of acquiring funds from apublic that might resist increased taxation but that sees gambling as areasonable alternative which offers at least the illusion of a possiblereturn, and the public has been more ready to shell out large sums onlottery tickets than it has to pay additional taxes directly. An examination of theissue will consider these criticisms as well as the reasons for thelegislation and the effects that it has had.Background: The growth in gambling is seen at present as continuing into the nearfuture, and according to Wall Street forecasts, spending on gambling willdouble within a decade. This is not the first suit to challenge thegaming act on constitutional grounds, and a suit from Alabama and one fromFlorida have also been making their way through the courts. InConnecticut, charities are allowed to run Las Vegas Nights with casino-style gambling, and that means the Pequots can do the same--24 hours a day,365 days a year--at their casino, where each day up to 2 , visitorsarrive and spend their money (Server, 1993, 139). The desire was to shield Indians "fromorganized crime and other corrupting influences" and to ensure that "theIndian tribe is the primary beneficiary of the gaming operation." To thisend, Congress devised a complicated system of regulation, though withoutmuch of a plan for overseeing how its well-intentioned rules would work(Segal, 1992, 28-29). The tribes are unworried that they may compete each other's profits away, or that white hoteliers and entertainment companies may soon muscle in on their monopoly. His testimonybefore the federal courts was embarrassing and amusing to many NativeAmerican journalists, for in that testimony he showed little if anyunderstanding of the peculiar but critical history of the tribes' fight forsovereignty, which has been affirmed since the earliest days of theConstitution (Magnuson, 1993, 171). One of the legal struggles waged against the explosion ofIndian gaming has been that of Donald Trump, seeking better odds for hisown gambling ventures in Atlantic City. "American Indians Discover Money Is Power." Fortune (April 19, 1993), 136-14 . 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